by Scott Zwartz
Sunday, October 18, 2015
. A just society must infuse Integrity into Governance.
. Starting in Abraham’s time, Jews have sought territorial cohesiveness, making the rules of governance basic to the Torah. The first lesson of Jewish political philosophy was the story of Sodom. By tradition, the fall of Sodom was about 4,000 years ago. Abraham tried to save the City by finding one righteous man, i.e. a man with integrity. The story of Sodom taught that corruption destroys societies.
. In Jewish tradition, when the judicial system is fatally corrupt, it leads to a society’s demise. Few modern people dwell on why the rabbis focused on the judges of Sodom. It was not an evil tyrant nor a foolish monarch who caused Sodom’s downfall, but rather its judges were responsible.
. Sodom had four judges: (1) “Liar”, (2) “Habitual Liar” (Shaḳrarai), (3) “Deceiver”, and (4) “Perverter of the Law” ( Maẓle Dina). The Midrash spoke of Sodom’s having five corrupt judges.
. The names which the rabbis gave to the judges show that Sodom’s judiciary as devoid of Integrity.
Why The Rabbis Made Judicial Integrity Central to Governance
. While kings may transgress the law, there is vital distinction between those who violate the law and those who pervert the law.
. When someone violates the law, he can be held accountable to the law. The law remains society’s standard of what is permitted and what is forbidden. This truth is inherent in Nathan’s statement to King David, “Thou art the man.”
. When someone perverts the law, then the law itself is destroyed. Only judges can pervert the law, and when they pervert the law, they destroy the standards which govern society. Instead, there is no law — only the whim of men without integrity.
. The rabbis’ concern for liars was reflected in the judges’ names which incorporate the concept of lying. A lie means that the facts are concealed so that unjust judicial decisions cannot be detected.
. Our own judiciary has its Shaḳraraim — Habitual Liars. When judges write opinions and the facts do not support their desired outcome, they change the facts. When a reviewing court looks at a trial court’s handling of a case, it generally defers to the trial court’s Findings of Fact. When the Findings of Fact are written by Shakraraim, they should be named Findings of Lies. For too many judges, facts and fiction are fungible.
. When an appellate justice is Maẓle Dina (Perverter of the Law), he welcomes falsehoods which allow him to pervert the law to benefit his own interests. He loves perjured declarations supplied by the side he favors. Whether his interests are financial or egomaniacal, the law is perverted. The corrupt passions of the judge who lacks Integrity are substituted for the rule of law. As we know, some appellate justices are known to tell trial court judges what to write in their opinions in order to support the decision which the appellate justice wants. They rest upon the silence of the court staff who are silent out of fear, but once they leave the court’s employ, their discretion in covering up the wrongdoing tends to evaporate.
. Something similar occurred with Justice Scalia, whom we call “Rab Masṭeh Din, i.e., Chief Perverter of the Law,” in the case of Great-West Annuity v Janette Knudson 534 U.S. 204 (2002). In Great-West, Scalia imposed on Ms. Knudson another attorney who would distort the facts and present the argument so that Justice Scalia could author his opinion on Equitable Equity and At Law Equity.
. As we see, the rabbis believed Liars and Perverters of the Law lead to society’s destruction. From the Jewish perspective, destruction of their societies was a repetitive reality. The prophets were continually blaming the injustices of the Jews as cause of own calamities. Not only were the nation states of Judah and Israel in constant peril, but after 70 C.E., countries whose rulers had fallen prey to Liars and Perverters of the Law were not safe havens for Jews.
. Plato and Aristotle also wrestled with problem of Integrity (virtue). Plato’s Republic and Aristotle’s Politics agreed that Integrity (virtue) is a necessary ingredient for good government. A dilemma faces the Jews, the Greeks and all other people who are concerned with good government.
Lord Acton’s Contribution’s
Power Tends to Corrupt and Absolute Power Corrupts Absolutely
. Lord Acton enunciated a crucial concept, which the US Constitution had embraced a century earlier, that is, power destroys Integrity.
. Hence, Political Philosophy’s Catch-22: Governance needs power, but power destroys Integrity, and a lack of Integrity perverts the law which destroys a just society.
America’s Faulty Solution
. The Founding Fathers had a solution, albeit an imperfect one — the balancing of power which we call the Checks and Balances. Between institutions, the balancing of power against power works relatively well as it is independent of the character of the men holding office. A corrupt executive may declare, “I am not a crook,” but his lust for the Imperial Presidency was outweighed by the Congressional power to impeach and the Senate’s power to convict.
. As the nation saw with both Nixon and Clinton, the judicial power of the Senate was the determining factor.
The Danger of Lack of Integrity Inside an Institution
. The balance of power between different parts of government does not remove the danger which people without integrity pose for the institutions themselves. Corrupt elected officials such as members of Congress have the theoretical balance of facing opponents during elections. The judiciary, however, has no such counterbalance. Judicial elections are no counter force since the public has no idea who is a good judge and who is a bad judge. In 1986, Californians voted out three good Justices of the Supreme Court and replaced them with undesirable men. When one adds judicial immunity into the mix, judges have even less reason to be ethical.
. While each decision is not the product of corruption, whenever private financial gain or a deranged power lust seizes hold of a judge or justice, the other members of the California judiciary just go along to get along.
. Too many judges and justices fib to themselves, saying that they can’t do any good unless they play the smart political game. They pretend that the long term good is served by the short term corruption. They buy the notion, “First I do evil so that later I may do good.”
. By lacking the Integrity to do what they know is right, they nurture a corrupt system until it becomes a thugery.
How The Corrupt Judiciary Rots Society
. A corrupt judiciary, as the Ninth Circuit lamented in January 2015, is a plague on society. The entire system tends to disintegrate. Lawyers betray their clients, confidential communications are shared to the attorney’s advantage and to the client’s harm, perjured declarations become rampant. Judges blackball attorneys with no care for the great harm they do to innocent clients. Characteristic of a psychopath, some judges become so obsessed with retaliation, they do not care about the litigants or “truth, justice and the American way.” [Superman comic, 1938]
. There is no more rule of law. The law is only invoked to support whichever lawyer the judge champions. As we have seen, if the facts do not support the desired conclusion, lie about them. If the favored attorney doesn’t falsify enough evidence, some judges willing do the job for them, transforming Findings of Fact into Findings of Lies. Other judges will simply pretend facts do not exist. The judiciary comes to exhibit “the innumerable ‘new schemes which the fertility of man’s invention would contrive.’ (American Philatelic Soc. v. Claibourne (1935) 3 Cal.2d 689, 698).” Barquis v. Merchants Collection Assn., (1972) 7 Cal.3d 94, 112. The Court continued:
As the Claibourne court observed: “When a scheme is evolved which on its face violates the fundamental rules of honesty and fair dealing, a court of equity is not impotent to frustrate its consummation because the scheme is an original one. There is a maxim as old as law that there can be no right without a remedy, and in searching for a precise precedent, an equity court must not lose sight, not only of its power, but of its duty to arrive at a just solution of the problem.” Barquis at 112
. But what is the public to do, when the judges and justices destroy the rules of honesty and fair dealing?
. Generally, they do nothing until the laws of nature bring on the destruction of society. The men of grandiose hubris never see it coming, and after the ruin, they never accept responsibility. As the Talented Mr. Ripely said, “Well, whatever you do, however terrible, however hurtful, it all makes sense, doesn’t it, in your head. You never meet anybody that thinks they’re a bad person.”